Friday, 25 April 2008

Cutting back copyright: format shifting

This is the other part of my note on the proposals to create new exceptions to copyright protection, posted here for completeness as it is now a little out of date in that the consultation has ended.

Most people probably ‘rip’ sound recordings from CDs they have bought onto their MP3 players. Some of us even make digital files from LPs or singles in their collections, which can then be transferred to MP3 players. It has been a joy rediscovering the music I enjoyed many years ago, and better still finding I could still sing along to the words. My memory’s better than I thought it was.
One of the great urban myths is that the law of copyright actually allows this. There’s nothing in the Copyright, Designs and Patents Act 1988 that says such activities are permissible, so where did the idea come from?

In part, it came from the States, where fair use of a copyright work is generally permitted (the sort of broad statement of principle that our law lacks), but even there vested interests have been arguing recently that the law does not permit this sort of activity. Bought the CD? Then pay for a download too!

The other thing that validates the myth is that the record industry hasn’t been anxious to condemn this behaviour. It’s hardly surprising that they are in no hurry to accuse their own customers of infringing their copyright - it’s no way to make friends and influence people. And the customers would be hard pressed to see where the damage lay, when they’d paid generously for the CD to start with. It’s not as if they would be listening to the copy at the same time as the CD.

The government proposes (following the Gowers recommendation) to create a new exception to legitimise this behaviour. In fact, the consultation document says that the exception ‘would allow consumers to make a copy of a work they legally own …’, which demonstrates that someone doesn’t fully understand what they are dealing with here. No-one owns the ‘work’, of course: the property rights at issue here are copyright and ownership of a physical carrier - a CD or a vinyl platter. When we are concerned with a downloaded file, surely there is nothing to own at all, just a licence to play the music in the file (though not, generally, in public).

But that’s just a quibble with the language used in the consultation document. The principle is clear enough: pay once, shift to other formats without restriction provided it’s for your own use. You can’t sell, loan out or give away the copy: that would have a impact on the copyright owner’s economic interest, because the copy is substituting for a sale. In theory, at least, because the sale might not be made: there will inevitably be much more demand for free copies than for original CDs. Years ago, I had a much more extensive collection of music on tape than on record, and the friends whose LPs I had taped had themselves copied from my record collection. The tape recordings were, in those pre-digital days, so grossly inferior that no-one was really losing anything, but for the sake of completeness I should mention that these flagrant infringements became statute-barred decades ago.

The privilege of shifting formats would not extend to file sharing systems or the Internet (which is nothing more than a giant file sharing system, when you think about it). Multiple copying, the government says, would not be allowed, though surely there will be circumstances in which it causes no harm - I have ripped CDs to my laptop as well as to my MP3 player, and would expect the law to condone this provided it is for my own use.

The consultation paper asks what classes of work this should extend to. Sound recordings of course, and films, but should it extend to all manner of works? The paper might have overlooked the fact that sound recordings need a musical, literary or dramatic work - usually musical, but of course the words of a song or the libretto of an opera are literary works - of which they are a recording, and likewise films need screenplays and other elements which may be copyright works, but those requirements can be readily brought within the scope of the proposed exception. But what about other literary works? What about electronic books? If you have a book on your computer suitable for reading in Microsoft Reader, for example, should you be able to transfer it freely to a portable device, something that we’ll probably be asking before very long? If you have a photograph in which the copyright belongs to someone else on you computer, should you be able to copy it to a portable device? Both propositions sound to me like a step too far - matters that should be dealt with in the licences under which the copies are used.

Would it suffice to say that the new exception applies only to works of any kind in digital form? No, because the analogue-to-digital transfer is something that definitely needs to be legitimised. My digital files made from my vinyl record collection are in copyright no-man’s land, in the sense that there’s an argument that they are not mere copies - but there is a whole other argument to be had one day about when a digital version of an old original recording is a new work and when it’s merely a copy. Does digital remastering create a new copyright? The record companies would like to think so.

Then the government asks what acts should be non-infringing, and in the same breath (though it’s a rather different question) what is meant by personal and private use. The first of these seems pretty clear, surely, and the consultation paper has already answered the point: the copies are not for sale, nor may they be lent (or, a fortiori, rented) out, or placed on a computer system - we are talking about the restricted act of reproducing the copyright work, not distribution or making available to the public, or performing or playing it in public. Given that the majority of the acts that need to be legitimised are to allow music to be listened to on a personal device, and leaving aside the point that these are often played so loud as to cease to be personal, this question almost answers itself.

How many format shifts would be allowed, the consultation paper then asks. I thought it had already dealt with this: format shift = copy, surely? No, clearly not quite. New formats will come along, old ones will fade away, and we have to decide whether consumers should be allowed to format shift again when technologies become obsolete. Again, I can’t see how this could threaten the interests of the copyright owner, so yes, we should be able to.
Should we be able to format-shift back catalogues? Oh, please, what on earth would be the point if we couldn’t? But frankly I think this is an academic question.

The record industry might or might not have acquiesced in what is going on already, but whether they say they have or not, I’d argue that they have been giving a licence, an implied one perhaps, to their customers to do this for years. Why not formalise the situation? The record industry should print the licence terms on their products, as they already do to the extent of prohibiting public performances, and let it be known that they will apply the same terms to their back catalogues. Only if they refuse to play ball should the government interfere in the exercise of private property rights and legislate for exceptions.

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